By Philippe Lebel

The Issue: Last month, California Governor Jerry Brown signed into law AB 2053, a bill to expand the existing managerial employee harassment training requirements to include bullying.

The Solution: Although the new law does not take effect until January 2015, employers should ensure that their managers receive training that encompasses both the previously required sexual harassment-related topics, as well as the prevention of “abusive conduct” – i.e., bullying.

Analysis: As it previously existed, section 12950.1 of the California Government Code required any employer with 50 or more employees to provide at least two hours of classroom or interactive training and education regarding unlawful sexual harassment to all supervisory employees. The training mandated by Section 12950.1 had to be provided to supervisory employees every two years, and to all newly-hired/promoted supervisory employees within six months of their assumption of a supervisory position. The training had to encompass information and practical guidance regarding both federal and state laws concerning the prohibition and prevention of unlawful sexual harassment, as well as information concerning unlawful discrimination and retaliation.

AB 2053 does not change the above training requirements – it adds to them. Specifically, AB 2053 mandates that Section 12950.1 training also encompass the “prevention of abusive conduct.” “Abusive conduct” is defined as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” The new language includes a non-exhaustive list of examples of abusive conduct, including “repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.”

Currently, abusive conduct, as defined by AB 2053, is not unlawful per se, unless motivated by an impermissible (e.g., discriminatory or retaliatory) motive. Thus, although the new language increases an employer’s training obligations, it does not expand on employees’ avenues to pursue civil discrimination litigation against their employers. However, AB 2053 may be a part of a new trend toward workplace anti-bullying legislation, and employers should keep abreast of this area of law as it develops.